United States Court of Appeals,
Fifth Circuit.
No. 94-60404.
Larry Shelton HENTZ, Petitioner-Appellant,
v.
Edward HARGETT, Superintendent, Mississippi State Penitentiary,
Respondent-Appellee.
Jan. 8, 1996.
Appeal from the United States District Court for the Northern
District of Mississippi.
Before SMITH, BARKSDALE and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
Larry Shelton Hentz (Hentz), a Mississippi state prisoner,
appeals the district court's denial of his petition for federal
habeas relief. 28 U.S.C. § 2254. The district court concluded
that Hentz anticipatorily repudiated the plea agreement when he
informed the prosecutor that his testimony would not comport with
his prior statements. He argues that the State breached the plea
agreement when it brought additional charges against him after
refusing to call him to testify at a codefendant's trial, thereby
rendering it impossible for him to perform his part of the bargain.
Finding that the district court properly denied relief, we affirm.
I. FACTS AND PROCEDURAL HISTORY
The facts and procedural history of this case are rather
involved.1 A careful understanding of the complicated history
1
Indeed, "[t]he background for this cause would interest
authors of murder mystery novels." Hentz v. State, 496 So.2d
668, 669 (Miss.1986).
1
underlying this appeal is necessary to resolve the issues
presented. A grand jury in Tate County, Mississippi returned an
indictment charging Hentz with the capital murder of James
Williamson (Williamson). Several days into Hentz's trial on this
charge, defense counsel approached the prosecutor regarding the
possibility of a plea agreement. On November 18, 1983, Hentz
entered into a plea agreement that allowed him to plead guilty to
the reduced charges of murder (non-habitual) and grand larceny
(non-habitual), with consecutive sentences of life imprisonment and
five years, respectively. Additionally, the prosecutor agreed to
dismiss other pending charges. In exchange, Hentz agreed to be
debriefed immediately regarding the events in question, to submit
to a polygraph examination to determine the accuracy of such
information, and to give truthful testimony at any trial of Cecilia
Ann Williamson (Cecilia) and/or Owen Lee Harden (Harden). Cecilia
and Harden were Hentz's codefendants.
The State's theory of the case was that the murder was a
contract killing. Specifically, Cecilia planned the murder of her
husband, Williamson, and enlisted the assistance of Hentz, with
whom she was having an affair. To carry out the plan, Hentz hired
Harden to shoot Williamson. Both Hentz and Harden were "to be paid
for their participation in the crime out of insurance proceeds
collected by [Cecilia] upon the death of her husband."2 Roger
Hentz (Roger), Hentz's brother, borrowed a gun and a vehicle from
Bill Morrow.
2
Williamson v. State, 512 So.2d 868, 870 (Miss.1987).
2
At the time that Hentz entered into the plea agreement, Harden
had been acquitted of the capital murder offense at issue. The
State nevertheless planned to prosecute Harden for other related
offenses. Harden ultimately pleaded guilty to arson in connection
with the burning of the murder victim's home.
Roger was never indicted for his part in this murder offense
because he had been granted immunity to testify at Harden's trial.
At Harden's trial, with a grant of immunity in his pocket, Roger
testified that he alone committed the murder, and the jury
acquitted Harden.
Subsequent to Hentz's plea of guilty, Cecilia was brought to
trial for the murder of her husband. The prosecutor decided not to
call Hentz as a witness after Hentz informed the prosecutor that
his testimony would not consist of the information he had provided
during the debriefing.3 Consequently, the prosecutor reinstated
certain charges and also brought additional charges against Hentz.
On November 29, 1984, Hentz filed a motion to set aside his
guilty plea, alleging that the State breached the plea agreement.
The state trial court denied the motion, finding that Hentz
breached the agreement by refusing to testify truthfully. The
3
Pursuant to Harden's plea agreement in the arson case, the
prosecution called Harden as a witness at Cecilia's trial.
Harden nonetheless refused to testify. The prosecution then
called other witnesses who testified regarding what Harden had
related to them. The jury found Cecilia guilty of capital
murder, and she was sentenced to death. The Mississippi Supreme
Court reversed Cecilia's conviction, holding that she had been
denied her constitutional right to confront the witnesses
presented against her. Williamson v. State, 512 So.2d 868
(Miss.1987).
3
Supreme Court of Mississippi affirmed the denial of the motion in
a published opinion. Hentz v. State, 503 So.2d 262 (Miss.1987).4
Finally, we note that Harden's trial spawned a perjury charge
against Hentz. At Harden's trial, John Taylor Gullett (Gullett)
testified that, while he was incarcerated in the county jail, Roger
admitted killing Williamson and claimed that Harden, Cecilia, and
Hentz were not involved. After the State obtained a letter Hentz
had written to his mother indicating that Hentz influenced
Gullett's testimony, Hentz was convicted of suborning perjured
testimony. Hentz's perjury conviction was reversed on appeal
because the indictment did not track the language of the relevant
statutes. Hentz v. State, 510 So.2d 515 (Miss.1987). In the
instant case, as the court below noted, the State "was unable to
successfully prosecute any of the four suspects for the murder of
Williamson without accepting pleas to lesser charges and was never
able to establish who the trigger man was despite nine months of
intensive investigation." Hentz remains incarcerated based on the
following convictions: murder (sentence of life); grand larceny
(consecutive sentence of 5 years); and conspiracy to commit grand
larceny (consecutive sentence of life without parole).
On January 29, 1988, Hentz filed the instant petition
challenging his murder conviction, alleging that the State violated
4
The Mississippi Supreme Court held that "[r]egardless of
whether or not the State violated the plea bargain agreement
subsequent to entry of the guilty plea by [Hentz], such violation
would not require setting aside the ... guilty plea. Action for
relief, if warranted, should be directed to those causes in
Lafayette County and Desoto County." Hentz, 503 So.2d at 265.
4
the terms of the plea agreement when it brought charges against him
subsequent to his murder conviction. The district court granted
Hentz's motion for an evidentiary hearing and appointed counsel to
represent him.
After the evidentiary hearing, the magistrate judge made the
following findings. Hentz was in his fifth day of trial for the
murder of Williamson when his attorney approached the State
concerning a plea bargain in which Hentz would agree to plead
guilty and testify truthfully against his codefendants Cecilia and
Harden. The State's primary objective was to successfully
prosecute Cecilia after Harden had been acquitted. The State
needed Hentz's testimony to obtain her conviction. The State's
theory of the case was that, pursuant to Cecilia's request, Hentz
hired Harden to be the triggerman.
Investigator Jimmy Dees and two other investigators escorted
Hentz to the Tate County Jail to record the details of the plan to
kill Williamson. The interview with Hentz was recorded on audio
tape; however, the tape was lost prior to the evidentiary hearing.
Robert Williams, the district attorney, understood that Hentz would
testify in accordance with the information he gave the officers
during his debriefing.
Dees was present throughout Hentz's interview and recalled the
admission and details provided by Hentz during the interview with
respect to the murder of Williamson. Hentz admitted that he had
been having an affair with Cecilia and that she enlisted his
assistance in a plan to kill her husband. Hentz hired Harden by
5
promising him $10,000 to shoot and kill Williamson. Hentz also
recruited his brother, Roger, to borrow a gun and a vehicle from
Bill Morrow. Cecilia was to leave the back door of her home
unlocked on the morning of the murder so that Roger and Harden
could enter the house and hide in the bathroom until after she left
for work. Harden was to shoot Williamson and then start a fire in
the bedroom.
After making that statement, Hentz was returned to the
courthouse where the plea agreement was signed in the presence of
Hentz's trial attorneys. On that same day, the court accepted
Hentz's guilty plea and imposed a life sentence. Three days later,
the State administered a polygraph test to Hentz to verify the
truthfulness of his statement.5
Subsequently, Cecilia was tried for the murder of her husband,
Williamson. The night before Hentz was to testify at Cecilia's
trial, Williams, Criminal Investigator Jimmy Radford, and an
assistant district attorney, met with Hentz to prepare for his
testimony the following day. Hentz then informed Williams that he
did not think that Williams would want to call him to testify
because Williams would not want to hear the substance of his
testimony. Hentz then related that his previously immunized
5
The examiner found no indication of deception. However,
the magistrate judge did not allow the admission of the results
for the purpose of showing whether Hentz' statements were true or
false. Instead, the results were admitted for the sole purpose
of establishing the basis on which the prosecution acted in this
case. In other words, the results were admitted to establish the
reasonableness of the State's position in asserting a breach of
the plea agreement when Hentz subsequently changed his version of
the events.
6
brother, Roger, acted alone to commit the murder. Williams replied
that he considered the plea agreement breached and returned to his
motel room to replan his trial strategy. Williams believed that
had he called Hentz to testify, Hentz would have done so, but would
have testified untruthfully.
Based on the above findings, the magistrate judge concluded
that, by recanting his earlier statements, Hentz had breached the
plea agreement. Therefore, the magistrate judge reasoned, the
State was excused from calling him to testify at Cecilia
Williamson's trial under the contract principle of anticipatory
repudiation. After rejecting Hentz's remaining arguments, the
magistrate judge recommended denying Hentz's petition for habeas
relief. The district court adopted the recommendation and denied
relief. Hentz now appeals.
II. ANALYSIS
A. WHETHER THE DISTRICT COURT PROPERLY FOUND THAT HENTZ BREACHED
THE PLEA AGREEMENT.
"Plea bargain agreements are contractual in nature, and are
to be construed accordingly." United States v. Ballis, 28 F.3d
1399, 1409 (5th Cir.1994). We must determine whether the district
court properly determined that Hentz breached the plea agreement.
The court below held that the contract law principle of
"anticipatory repudiation" applied to determine who breached the
plea agreement. The Restatement of Contracts defines repudiation
as "a statement by the obligor to the obligee indicating that the
obligor will commit a breach that would of itself give the obligee
a claim ... for total breach...." Restatement (2d) of Contracts,
7
§ 250 (1979). Further, "[w]here performances are to be exchanged
under an exchange of promises, one party's repudiation of a duty to
render performance discharges the other party's remaining duties to
render performance." Restatement (2d) of Contracts, § 253(2).
Relying on a comment to § 255 of the Restatement of Contracts,
the district court determined that when Hentz informed the district
attorney that he would not testify in accordance with the
statements he provided during his debriefing, the State was
entitled to rely on that representation. Restatement (2d) of
Contracts, § 255(a). Section 255, Comment (a) provides in part
that:
No one should be required to do a useless act, and if, because
of a party's repudiation, it appears that the occurrence of a
condition of a duty would not be followed by performance of
the duty, the non-occurrence of the condition is generally
excused. In judging whether occurrence of the condition would
be followed by performance of the duty the obligee may take
the obligor at his word.
Based on the above authorities, the district court reasoned
that, to assert a breach of the plea agreement, the State was not
required to call Hentz as a witness. It held that Hentz's
"repudiation operated to excuse the non-occurrence of such a
condition when it appeared that the condition precedent
(testifying) would not be followed by performance of petitioner's
duty (to testify consistent with his first statement)."
Accordingly, the district court determined that when Hentz agreed
to testify truthfully, the State bargained for what he represented
the truth to be at the time the agreement was reached, i.e., what
he said during the debriefing. By recanting, the district court
8
reasoned, Hentz breached the agreement, and thus, the State was
excused from calling him to testify.
Hentz argues that the district court erred when it held that
he, not the State, breached the plea agreement because he was never
given the opportunity to perform his part of the contract. He
contends that calling him to testify was a condition precedent to
the State's contention that he breached the plea agreement.
Hentz's argument is not compelling. Of course, calling Hentz as a
witness was a condition precedent to Hentz's testifying for the
State. However, if the principle of anticipatory repudiation
properly applies in the instant case, as the court below found,
then the condition precedent of calling Hentz to the stand to
testify was excused.6
Hentz also argues that the district court misinterpreted his
obligation "to testify truthfully" to mean that his testimony would
be consistent with his prior statements. According to Hentz, there
is no evidence that the district attorney or anyone else informed
him that his "truthful testimony" was to consist of the statements
made during his debriefing in which he implicated Cecilia, Harden,
and himself in the crime. He adds that the plea agreement does not
define what constitutes "truthful testimony" and that any ambiguity
6
We have acknowledged the principle of anticipatory
repudiation in the context of a plea bargain. United States v.
Owen, 492 F.2d 1100, 1108 (5th Cir.), cert. denied, 419 U.S. 965,
95 S.Ct. 227, 42 L.Ed.2d 180 (1974); United States v. Thomas,
593 F.2d 615, 623 (5th Cir.), reversed on other grounds on
rehearing, 604 F.2d 450 (5th Cir.1979). Ultimately, however, we
found that the principle did not apply in either of those two
cases.
9
must be construed against the State in accordance with established
contract principles. Hentz submits that his second version of the
facts surrounding the murder was the truth and therefore would have
constituted truthful testimony at Williamson's trial in accordance
with his plea agreement. We do not find these arguments
persuasive.
After an evidentiary hearing, the magistrate judge found that
the evidence tended to establish that Hentz's initial statements
were truthful rather than the statements proffered the night before
Hentz was to testify against Cecilia. As the court acknowledged,
Williams had several reasons for believing Hentz's first version of
the events, including: the testimony of Bill Morrow at Hentz's
trial; information from a jail house informant; statements given
by Cecilia; and a letter Hentz wrote to his mother apparently
indicating that he had suborned the perjured testimony of Gullett.
Because the district court's finding is supported by the record, it
is not clearly erroneous.
Further, although the agreement does not define "truthful
testimony," we are hard pressed to believe that Hentz understood
that the State bargained for Hentz's testimony at the trial of
Cecilia to consist of exculpating Cecilia, Harden (the alleged
triggerman), and himself in exchange for evading the possibility of
being sentenced to death7 or life without parole. Such an
interpretation of the plea agreement would be unreasonable. Cf.
7
A death sentence was not necessarily an unlikely sentence
in view of the fact that Cecilia was sentenced to death.
10
Restatement (2d) of Contracts, § 203 (1979).8 One can hardly
imagine a more unlikely scenario than the State's agreeing to a
negotiated plea of guilty so that the defendant could testify in a
later trial that he was not guilty.9
Accordingly, in light of the district court's finding that the
evidence indicated that Hentz's initial statements were truthful,
we find that Hentz anticipatorily repudiated the agreement when he
informed the prosecutor that his testimony would not comport with
his prior statements.
Finally, we note that the plea agreement also provided that
Hentz agreed to later submit to a polygraph examination to
determine the accuracy of the information previously given during
the debriefing. According to Hentz, the version of the events he
initially provided during the debriefing was false. Hentz
therefore breached the plea agreement regardless of whether he gave
false information during the debriefing or whether his later
8
Section 203 of the Restatement 2d provides in part that:
In the interpretation of a promise or agreement or a
term thereof, the following standards of preference are
generally applicable:
(a) an interpretation which gives a reasonable,
lawful, and effective meaning to all the terms is
preferred to an interpretation which leaves a part
unreasonable, unlawful, or of no effect
....
9
We also recognize that an attorney may not call a witness
to the stand when the attorney knows the witness is going to
perjure himself and that a prosecutor has ethical obligations to
bargain only for truthful testimony.
11
proposed testimony was false.10
B. WHETHER THE DISTRICT COURT ERRED IN FINDING THAT HENTZ WAS NOT
ENTITLED TO WITHDRAW HIS GUILTY PLEA.
Hentz argues that the following provision in the plea
agreement required that he be allowed to withdraw his plea.
It is expressly understood between the parties that if the
Defendant does not honor the terms and conditions of this
agreement, that the State will consider the agreement null and
void. Any breach of this agreement whatsoever by the
Defendant will cancel each and every portion of the agreement
thereof and the State will be permitted to take any and all
action and/or actions deemed advisable, in the sole discretion
of the State.
(emphasis added). Hentz contends that, assuming arguendo he
violated the agreement, the entire agreement was rendered "null and
void," and therefore, "his promise to plead guilty to murder and
grand larceny was canceled at the same exact moment when
Respondent's promise to dismiss other charges pending against
Petitioner ... was canceled."
Hentz's contention ignores the fact that he had not only
promised to plead guilty at the time he breached the plea
10
Additionally, relying on Danley v. State, 540 So.2d 619
(Miss.1988), Hentz argues that the State breached the plea
agreement when the district attorney unilaterally decided that
Hentz had breached the bargain. In Danley v. State, 540 So.2d
619 (Miss.1988), the Mississippi Supreme Court held that a
district attorney could not make the decision whether the
defendant had failed to perform the condition precedent. That
decision had to be made by the court.
To the extent that Danley involves a state procedural
rule, it is not of constitutional concern, and therefore not
cognizable in this federal habeas proceeding. In any event,
Hentz, as a federal habeas petitioner, must state a
constitutional claim regardless of the Mississippi Supreme
Court's decision in Danley. He has failed to do so.
12
agreement, he had already pleaded guilty.11 In any event, "
"failure of the defendant to fulfill his promise to cooperate and
testify fully and honestly releases the government from the plea
agreement.' " Ballis, 28 F.3d at 1410 (quoting United States v.
Gonzalez-Sanchez, 825 F.2d 572, 278 (1st Cir.), cert. denied, 484
U.S. 989, 108 S.Ct. 510, 98 L.Ed.2d 508 (1987)). Further, if a
defendant materially breaches his plea agreement, the prosecution
is released from its obligations under that agreement and may bring
a new indictment on previously dismissed charges. Id., 28 F.3d at
1409.
Hentz next argues that his guilty plea was not knowing and
voluntary because he was not informed that he would be unable to
withdraw his plea if he breached the plea agreement. A federal
habeas court will uphold a guilty plea if it was knowing,
voluntary, and intelligent. Hobbs v. Blackburn, 752 F.2d 1079,
1081 (5th Cir.), cert. denied, 474 U.S. 838, 106 S.Ct. 117, 88
L.Ed.2d 95 (1985). Before accepting a guilty plea the "court must
ensure that the defendant has a full understanding of what the plea
connotes and of its consequence." Taylor v. Whitley, 933 F.2d 325,
329 (5th Cir.1991), cert. denied, 503 U.S. 988, 112 S.Ct. 1678, 118
L.Ed.2d 395 (1992) (internal quotations and citation omitted).
As the court below opined, when the defendant, rather than
the prosecutor, breaches the agreement, the voluntariness of the
plea is not at issue because it was not the defendant who acted in
11
Indeed, Hentz filed the motion to set aside his guilty
plea over nine months after he was indicted for suborning
perjury.
13
reliance on a false or unkept promise. "[W]hen the prosecution
breaches its promise with respect to an executed plea agreement,
the defendant pleads guilty on a false premise, and hence his
conviction cannot stand." Mabry v. Johnson, 467 U.S. 504, 509, 104
S.Ct. 2543, 2547, 81 L.Ed.2d 437 (1984). The court also noted that
Hentz has never asserted that the State induced him to plead guilty
by false promises.
In support of his argument that he was entitled to notice of
the consequences flowing from his breach of the agreement, Hentz
cites Innes v. Dalsheim, 864 F.2d 974 (2d Cir.1988), cert. denied,
493 U.S. 809, 110 S.Ct. 50, 107 L.Ed.2d 19 (1989). In that case,
the defendant entered his guilty plea and was allowed to remain on
bond pending sentencing. During that interim, the defendant was
arrested on additional charges. The sentencing court found that
the defendant had breached the plea agreement and imposed a
sentence greater than the one in the plea agreement. The Second
Circuit held that the district court erred in refusing to allow the
defendant to withdraw his guilty plea because (1) the court had not
informed him, at the guilty plea hearing, that he would not be able
to withdraw his plea if he violated the terms of the plea
agreement, and (2) the court imposed a sentence greater than the
one contained in the plea agreement. Id. at 979-80.
We find Innes inapposite.12 Unlike the defendant in Innes,
12
Cf. Parry v. Rosemeyer, 64 F.3d 110, 115 n. 8 (3d
Cir.1995) (distinguishing Innes, the Third Circuit explained that
"Parry ultimately received a higher sentence than he was
expecting solely because of his post -sentencing conduct in
violation of the terms of his probation.") (emphasis in
14
Hentz received the life sentence for which he bargained, and as set
forth previously, the prosecution may bring additional charges if
the defendant breaches the plea agreement. Ballis, supra.
Finally, the above-quoted provision in the plea agreement upon
which Hentz relies gave him sufficient notice that the consequences
of any breach he committed would be in the sole discretion of the
State. Hentz has failed to show that his guilty plea was unknowing
and involuntary. See Mabry, 467 U.S. at 509-11, 104 S.Ct. at 2547-
48.
Accordingly, the judgment of the district court is AFFIRMED.
opinion), petition for cert. filed, (U.S. Nov. 13, 1995) (No. 95-
6719).
15